Scholars Crossing Faculty Publications and Presentations Liberty University School of Law Spring 2003 Lifting the Veil: An Expose on the American Bar Association's Arbitrary and Capricious Accreditation Process Mathew D. Staver Liberty University, [email protected] Anita L. Staver Liberty University, [email protected] Follow this and additional works at: https://digitalcommons.liberty.edu/lusol_fac_pubs Part of the Law Commons Recommended Citation Staver, Mathew D. and Staver, Anita L., "Lifting the Veil: An Expose on the American Bar Association's Arbitrary and Capricious Accreditation Process" (2003). Faculty Publications and Presentations. 6. https://digitalcommons.liberty.edu/lusol_fac_pubs/6 This Article is brought to you for free and open access by the Liberty University School of Law at Scholars Crossing. It has been accepted for inclusion in Faculty Publications and Presentations by an authorized administrator of Scholars Crossing. For more information, please contact [email protected]. THE WAYNE LAW REVIEW VOLUME 49 SPRING 2003 NUMBER 1 LIFTING THE VEIL: AN EXPOSÉ ON THE AMERICAN BAR ASSOCIATION’S ARBITRARY AND CAPRICIOUS ACCREDITATION PROCESS MATHEW D. STAVER† ANITA L. STAVER‡ Table of Contents I. INTRODUCTION .......................................... 3 II. THE DEVELOPMENT AND STRUCTURE OF ABA ACCREDITATION ... 7 A. The Structure of the ABA .............................. 8 B. The Department of Justice Antitrust Consent Decree ....... 14 C. The Department of Education’s Review of the ABA and the DOJ Modified Consent Decree ........................ 15 III. THE ABA’S DELEGATION OF AUTHORITY TO AN ADVISORY BODY TO RENDER LAW SCHOOL ACCREDITATION DECISIONS WHICH BIND THE CORPORATION IS AN ULTRA VIRES ACT ............ 19 A. The ABA’s Delegation of Binding, Non-Reviewable Authority over Law School Accreditation Matters to an Advisory Body Is an Ultra Vires Act Prohibited by Illinois Law .......... 20 B. The ABA’s Delegation of Binding, Non-Reviewable Authority over Law School Accreditation Matters to an Advisory Body Is an Ultra Vires Act Prohibited by Article 6.1 of the ABA Constitution ....................................... 30 IV. THE ABA’S FLAWED ACCREDITATION PROCESS EXPOSED BY ITS HANDLING OF BARRY UNIVERSITY SCHOOL OF LAW .......... 36 A. The Council Reverses the Accreditation Committee’s Recommendation and Denies Accreditation .............. 37 1. The Accreditation Committee’s Report Recommending in Favor of Provisional Accreditation ................. 38 † Mathew D. Staver, President and General Counsel, Liberty Counsel. B.A., 1980, Southern College; M.A., 1982, Andrews University; J.D., 1987, University of Kentucky. ‡ Anita L. Staver, attorney, Liberty Counsel, B.A. 1986, University of Kentucky; M.A., 1992, Liberty University; J.D. 2002, Barry University School of Law. 1 2 THE WAYNE LAW REVIEW [Vol. 49:1 2. The Council’s Decision Overruling the Accreditation Committee ..................................... 39 a. The Council Violated ABA Rules by Using a De Novo Standard of Review .......................... 39 b. The Council Unlawfully Raised Anti-Competitive Concerns .................................. 44 B. The Council Reverses the Accreditation Committee’s Recommendation and Accredits Barry .................. 45 1. The Accreditation Committee’s Report Recommending Against Provisional Accreditation .................. 47 2. The Council’s Decision Overruling the Accreditation Committee ..................................... 49 V. THE ABA’S ACCREDITATION PROCESS AND FEDERAL ANTITRUST LAWS ............................................... 49 A. The ABA’s Action with Respect to Barry Was Private Action . 52 B. The Agreement or Conspiracy ......................... 57 C. The ABA Has Imposed An Unreasonable Restraint On Trade . 60 1. Barry Compared to the Only Law School Provisionally Approved in 2001 ............................... 61 2. Barry Compared to the Only Law School Provisionally Approved in 2000 ............................... 62 3. Barry Compared to the Only Law School Provisionally Approved in 1999 ............................... 64 4. Barry Compared to Only Law School Provisionally Approved in 1998 ............................... 66 D. The ABA’s Accreditation Process Injures the Legal Profession ........................................ 69 1. The Market ..................................... 69 2. Interstate Commerce .............................. 71 3. The Antitrust Violation Causes Injury to the Legal Market. ....................................... 71 VI. CONCLUSION ......................................... 74 VII. APPENDICES ......................................... 77 APPENDIX A ............................................. 77 APPENDIX B ............................................. 79 APPENDIX C ............................................. 85 ENDNOTES TO APPENDIX C .................................. 91 2003] ACCREDITATION PROCESS 3 I. INTRODUCTION The American Bar Association (ABA) has become “the gatekeeper to the legal profession.”1 Approximately forty-five states require graduation from an ABA-accredited law school as a prerequisite to bar admission.2 Despite a growing uneasiness about the ABA accreditation process, most state supreme courts and legislatures have deferred to the ABA for accreditation decision-making, which some contend “amounts to an abdication of political responsibility.”3 Those critical of the current 1. Andy Portinga, ABA Accreditation of Law Schools: An Antitrust Analysis, 29 U. MICH. J.L. REFORM 635, 670 (1996); see also Henry Ramsey, Jr., The History, Organization, and Accomplishments of the American Bar Association Accreditation Process, 30 WAKE FOREST L. REV. 267, 272 (1995) (proclaiming the ABA and law schools are the “gatekeepers to the profession”). Ramsey’s statements were made at a Deans’ Workshop during the ABA’s mid-winter meeting in February 1995. At the time, the ABA was under investigation by the United States Department of Justice (DOJ) for alleged anti-competitive activity. The DOJ filed its complaint against the ABA alleging antitrust violations on June 27, 1995, and simultaneously filed an agreed stipulation with the ABA for the entry of a Final Judgment along with a Competitive Impact Statement. See Complaint and Stipulation and Competitive Impact Statement, United States v. ABA, 934 F. Supp. 435 (D.D.C. 1996) (noting the “year long” investigation). On the same day the DOJ issued a press release announcing the proposed settlement. See Proposed Settlement, United States v. ABA, 934 F. Supp. 435 (D.D.C. 1996) (on file with authors). Then, on August 2, 1995, the DOJ filed its Proposed Final Judgment and Competitive Impact Statement, United States v. ABA, 60 Fed. Reg. 39,421 (Dep’t Justice Aug. 2, 1995) [hereinafter Proposed Final Judgment]. See also United States’ Response to Public Comments About Proposed Modifications of Final Judgment, United States v. ABA, 934 F. Supp. 435 (D.D.C. 1996). Ramsey’s speech was designed to cheer-up the troops and to quell voices of dissent. 2. Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justification for Entry and Conduct Regulation, 33 ARIZ. ST. L. J. 429, 435 nn.16-17 (2001). See generally NAT’L CONF. OF BAR EXAM’RS & ABA SEC. OF LEGAL EDUC. & ADMISSIONS TO THE BAR, COMPREHENSIVE GUIDE TO BAR ADMISSION REQUIREMENTS (Erica Moeser & Margaret Fuller Corneille eds., 2002), available at http://www.abanet.org (accessed from homepage by selecting Search and entering phrase “Bar Admission Requirements”) (last visited Mar. 30, 2003). 3. Christopher T. Cunniffe, The Case for the Alternative Third-Year Program, 61 ALB. L. REV. 85, 145 (1997). The Montana Supreme Court stated that it did “not have the expertise or the resources to conduct independent reviews of non-ABA approved law schools to determine which such schools offer the quality legal education we seek to obtain from Montana Bar applicants.” In re Culver (Mont. Sup. Ct. Order Feb. 2, 2002). However, a few states have chosen to maintain local control over law school education and provide for state approval in addition to ABA accreditation. See, e.g., ALASKA R. BAR RULE 2, § 1(b) (West 2003) (providing for ABA or the Association of American Law Schools, which has now ceded accreditation to the ABA); CAL. BUS. & PROF. § 6060 (West 2003); CAL. ADMIS. RULE 19, § 3 (West 2003); MASS. R. S. CT. RULE 3:01, § 3.3 (West 2003); MICH. R. BD. LAW EXAM’RS RULE 2(B) (West 2003); TENN. SUP. CT. RULE 7, art. 2, § 2.03 (West 2003); VT. 4 THE WAYNE LAW REVIEW [Vol. 49:1 accreditation process became more vocal following a lawsuit filed on November 23, 1993, against the ABA by a Massachusetts law school.4 Shortly thereafter, the deans of fourteen law schools, including the University of Chicago, Harvard and Stanford, sent an open letter to the deans of every ABA-accredited law school, urging that the accreditation process be reformed.5 The letter, in part, stated the following: We find the current process overly intrusive, inflexible, concerned with details not relevant to school quality (perhaps even at odds with maintaining quality), and terribly costly in administrative time as well as actual dollar costs to schools. It is this sense of responsibility that gives rise to our concern that the accreditation process for law schools is heading in the wrong direction. Our varied visions of legal education focus on the results of the educational process, on the outputs of legal education—about the sort of graduates we produce, about the sort